By Damilola Obanijesu Oyawole
The inherent character of election petitions necessitates the invocation of the injunction remedy. The petitioner, who contests the triumph of the respondent in the election being challenged, invariably apprehends the respondent’s assumption of office and thus, earnestly seeks the grant of an injunction in their own favour. It is, therefore, surprising and ironic that in election petitions, injunctions are rarely granted. The rationale behind the denial of an injunction in electoral petitions is, in part, attributable to the courts’ apprehension of causing a vacuum in an elected political position, upsetting the status quo, and the notion that the subject matter/res under dispute is not a perishable asset. In political cases, not only are the courts reluctant to grant an interim injunction or interlocutory injunction to remove the sworn-in elected political office holder, they appear unwilling to restrain the swearing in of an elected person whose election is challenged on the consideration that the res is not perishable. In my humble view, this line of reasoning is flawed. The ‘res’ in political matters is indeed perishable if one considers the ‘res’ to be the term of a political office holder. With the exception of local government chairmen and councilors, the duration of an elective office holder’s tenure under the 1999 Constitution is four years. It is beyond cavil that four years is a perishable res. Even with the decision in Peter Obi v. PDP & Ors,[1] it is uncertain whether each victorious litigant, who challenges the electoral triumph of their adversary, is eligible to commence their term anew.
Respectfully, it is proposed that in instances involving democratized elective positions where there exists a genuine probability of a claimant with an unfavorable position succeeding in their legal action, a temporary or provisional injunction, if requested, should be awarded until the case is resolved. It is a source of great distress for a party who was defrauded in an election to witness an interloper enjoying an office that rightfully belongs to them, all the while enduring a protracted legal process. In circumstances such as this, it is recommended that an injunction be issued to prohibit the questionable victor from being sworn in until the case is finally determined. This judicial stance would discourage election manipulators from engaging in fraudulent activities, given that they would know in advance that they would be barred from being inaugurated.
The law, which is ensconced like the rock of Gibraltar, is that an interlocutory order by way of injunction is not a proper remedy for an act which has already been carried out. Also, in the case of Buhari v. Obasanjo,[2] an attempt was made to restrain, by injunction, the swearing in of the respondent, but the Supreme Court held that the injunction sought could not be granted. The court held that:
It is thus obvious from the facts before us that the object for which the injunction was asked for, namely to restrain the 1st and 2nd respondents from presenting themselves for swearing in as President and Vice-President respectively on the 29th May, 2003, had already been accomplished before this appeal was lodged. In other words, an interlocutory injunction was, and is no more a remedy for an act which has already been carried out.
Undoubtedly, by the time the Supreme Court heard the appeal, the respondent had already been sworn in as the President of the Federal Republic of Nigeria. Nonetheless, this fact is not pertinent for the Supreme Court to employ when deciding whether vel non the request for a temporary injunction is untimely. Respectfully, it is contended that the critical moment for the Supreme Court to examine in this regard is when the request for a provisional injunction was submitted to the Court of Appeal, which originally heard the petitioner’s case.
If the application for interlocutory injunction against the swearing in of the appellant was filed in the Court of Appeal before the respondent was sworn in, as was the situation in Buhari v. Obasanjo,[3] then the application for an interlocutory injunction was not directed at a finished action, as concluded by the Supreme Court, and thus should have been approved, assuming that the tardiness of the application was the sole criterion for consideration.
In a country where election rigging has become a democratic norm, the Supreme Court’s age long decision in Buhari v. Obasanjo[4] merely invests confidence in election riggers who will continue to rig election with impunity, and once they are sworn in, their opponents are faced with a fait accompli. This implies that every candidate running in an election must utilize any and all means at their disposal to secure a win, as there is limited, if any, legal recourse for them if they lose due to illegitimate means. This is what has predominantly transformed elections in Nigeria into a life-or-death matter, since if a candidate loses at the polls, their only remaining choice is to take their case to the streets as seen some few days back by the PDP, [5] or become so disheartened as to commit self-harm. This is a chaotic state of affairs that detracts from the nation’s standing in the global community.
Damilola Obanijesu Oyawole is a final year law student of the University of Ilorin. He has a panache for corporate finance, and litigation. He can be reached via obanijesudamil@gmail.com
REFERNECES
[1] (Unreported).
[2] (2004) 1 WRN 1.
[3] Ibid at page 20, lines 15-23.
[4] Ibid.
[5] Sahara Reporters, “I Was Drinking Whiskey While Atiku Led Protesters To INEC Headquarters Shouting ‘All We Are Saying’ – Governor Wike”,<https://saharareporters.com/2023/03/11/i-was-drinking-whiskey-while-atiku-led-protesters-inec-headquarters-shouting-all-we-are> accessed on 12th March 2023.